FilmOn X, which offers digital streams of broadcast signals, lost in court again on Thursday, with more signs that a string of legal defeats may affect not just its business but that of its rival, Aereo.
U.S. District Judge Rosemary M. Collyer refused FilmOn X’s request to set aside an injunction as it pursues an appeal or to roll back the scope of her order prohibiting the company from offering the unauthorized broadcast station feeds in almost the entire U.S. Last week, Collyer ruled that the offerings of FilmOn X’s D.C. service were public performances in violation of the Copyright Act, and she extended an injunction not just in the nation’s capital but in all other jurisdictions save New York.
While her order applies just to FilmOn X, she also seemed to suggest that Aereo will have future legal troubles outside the New York area, where courts so far have held that its service doesn’t violate copyright by offering broadcast feeds to customers assigned tiny, dime-sized antennas.
In her latest ruling rejecting FilmOn X’s arguments, Collyer wrote that Aereo was “a similar service that also appears to infringe” on broadcasters’ copyrights. That may set up a roadblock to Aereo’s plans to enter the D.C. market. A district judge in Los Angeles, George Wu, ruled against FilmOn X late last year, and Aereo has stayed away from the Southern California market even as it set up an aggressive plan of expansion in other markets. Wu’s decision is on appeal.
As they watched Aereo score legal victories in New York, the networks’ legal teams have adopted a strategy of isolating the company elsewhere, confident that the language of the Copyright Act was on their side. The next chapter will be in Boston, where a federal judge is holding a hearing next week on whether Aereo is infringing copyrights in that market. Aware of the FilmOn X rulings, Aereo’s attorneys on Wednesday filed a brief in the Boston court arguing that Collyer relied on a “misinterpretation of the Copyright Act and its legislative history.”
“Only transmissions ‘to the public’ constitute public performance,” Aereo said in its filing. “The undisputed facts establish that an Aereo member may only transmit her own individual copy to herself. That is the performance at issue and it is not ‘to the public.'” It also argues that the rationale adopted by the 2nd Circuit in New York — which emphasized the control that a user had over the technology — was applied by the Ninth Circuit when it upheld Dish Network’s use of an automatic ad-skipping and recording technology.
Conflicting federal circuit court opinions could well spur the Supreme Court to pick up one or several cases — and some are predicting that is just what will ultimately happen. But at least in the last couple of weeks, the broadcast networks have some glimmers of hope that the march of this Internet streaming technology will be kept in check.